TMI Blog2012 (10) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... ND SHRI SAKTIJIT DEY, JUDICIAL MEMBER For the Petitioner : Sri S. Rama Rao For the Respondent : Smt. Amisha S. Gupth ORDER PER CHANDRA POOJARI, AM: These two Miscellaneous Applications (MAs) filed by the assessee are arising out of the common order of the Tribunal dated 30.11.2009 in ITA No. 1141/Hyd/2005 and ITA NO. 9/Hyd/2007 for A.Ys. 2001-02 and 2003-04. 2. First we will take up the MA No. 113/Hyd/2012. The first grievance of the assessee in this MA is that the assessee raised the ground in its appeal with regard action of CIT(A) in confirming the estimation of income from contract receipts at 12.5% on ₹ 33,00,04,334 which includes works take on sub-contract from others aggregating to ₹ 21,09,35,829. Against this ground, the Tribunal given a finding in its order dated 30.11.2009 in ITA No. 1141/Hyd/200 as follows: 8. We have carefully gone through the above order of the Tribunal. In that case, the assessee has not undertaken any sub contracts. But in the present case, the argument of the assessee counsel is that the assessee is also undertaken sub contract from other contractors. However, the Assessing Officer not considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s executed on its own and the balance ₹ 21,09,35,829 is on subcontract basis. According to him rate of 12.5% has to be applied only on ₹ 11,90,68,505 and on the balance amount of ₹ 21,09,35,829 which is on subcontract basis, the rate of 8% has to be applied. This argument of the assessee's counsel is totally misplaced. The Tribunal after going through para 4 of the CIT(A)'s order where he has followed the order of the Tribunal Hyderabad Bench dated 20.3.1998 in the case of M/s. Krishna Mohan Constructions in ITA Nos. 380 381/Hyd/94 decided the rate of net profit at 12.5% on entire contract receipts. There was no evidence regarding taking up of subcontract from any other concern at ₹ 21,09,35,829. Being so, the Assessing Officer while passing the consequential order is justified in considering the contract receipts at ₹ 33,00,04,334 for determining the net profit at 12.5% and there is no clarification required regarding the rate of net profit to be applied in respect of contract receipts of ₹ 33,00,04,334. 6. Regarding determining the rate of net profit on other contract receipts of ₹ 12,20,21,402 where the CIT(A) fixed the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 254(2) of the Act. 11. Further the assessee raised the issue that sale of material represents sale of scrap remained after construction is completed. The material was purchased for being used in the process of construction and the scrap left out was sold. This has the effect of reducing the expenditure and is not an income by itself. According to the AR this fact was not considered by the Tribunal while deciding the issue. 12. The DR relied on the order of the Tribunal. 13. We have heard both the parties and perused the material on record. The Tribunal considered the entire relevant facts and gave a finding in para 11 of its order, as follows: 11. We have heard both the parties and perused the material on record. Admittedly, the entire expenses incurred on the scrap are already gone into the Profit and Loss A/c. and same said to have been allowed while computing the income of the assessee and further no deduction could be given. The profit is estimated on the contract receipt does not include any profit from sale of scrap. Being so, the entire value of the scrap sold to be taxed and in our opinion, the CIT(A) justified in holding the entire salve of scrap to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Tribunal in Krishna Mohan Constructions cited supra. The Tribunal only adjudicated the ground before it with regard to estimation of income on gross receipts as mentioned in ground NO. 2. If the Assessing Officer passed the consequential order and if there is any mistake that cannot be attributed to the mistake committed by Tribunal in its order. The remedy lies to the assessee elsewhere. Once again we make it clear that the Tribunal directed the Assessing Officer to adopt 12.5% on the contract receipts with reference to ground No. 2 raised by the assessee. In our opinion, there is no mistake apparent on record which warrants rectification by the Tribunal. 18. The second issue raised by the assessee in this MA is with regard to adjudication of Ground No. 4 wherein the Tribunal given a finding that the entire value of scrap sold has to be taxed in addition to the estimated income from contract receipt. 19. The learned AR submitted that the assessee raised the ground as follows: 4. The learned CIT(A) erred in confirming the action of the Assessing Officer in separately considering the sale proceeds of ready mix, bitumen, diesel, steel, cement, etc., in their entirety ..... X X X X Extracts X X X X X X X X Extracts X X X X
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